Harassment is a power game

As part of the Law Society’s ongoing initiative to raise awareness about harassment and discrimination in the workplace, the Benchers’ Bulletin is running a series of articles on the topic by Patricia Janzen, a partner at Fasken Martineau DuMoulin.

In Janzen v. Platlaty Enterprises Ltd., the case that provided Canada with its working definition of harassment, the Supreme Court of Canada also noted that sexual harassment involves an abuse of both economic and sexual power. In my last article, I reviewed the Dupuis case and the important role power played in the analysis of whether and to what degree a complainant must expressly reject or object to "unwelcome conduct."

A fundamental problem created by an imbalance in power is that it inhibits candid communication. The powerful person interprets silence or a smile as acquiescence. The greater the power, the greater the risk that no one will address the powerful person when he or she is out of line. The powerful person is left exposed, like the emperor in "The Emperor's New Clothes."

Power in the employment relationship can come from many sources, including not only a person's place in the workplace pecking order but seniority, age, being a member of the majority, or having a valuable skill that is hard to replace.

In law firms, regardless of their size or formal management structure, the greatest power generally resides with those partners that have thriving practices in the most lucrative areas and strong relationships with key clients. The most vulnerable members of a law firm are usually its articling students as their ability to become licensed depends on successful completion of articles.

In an environment of power imbalance, speaking out is easier said than done. When a member of staff asks a lawyer to stop making jokes based on ethnic or racial stereotypes or when an articling student asks her principal to stop commenting on her attractive appearance, the lawyer or principal can feel personally attacked and take offence. But in raising the personal conduct of another, the staff member or articling student is doing more than simply stating disapproval of the conduct of another. The junior employee is asking the more powerful person to change — for the junior employee.

Harassment victims may also be afraid that they won't be believed. Sexual harassment

in particular usually involves a "he says/she says" scenario, with no witnesses. If the alleged harasser is a powerful partner in the firm, the junior employee will be concerned

that the imbalance in power may affect which party is believed and will likely affect the ultimate outcome.

Articling students and junior lawyers are further inhibited from bringing a complaint because they see complaining, whether internally or externally, as an inauspicious way to start a career. The role of victim is also inconsistent with the image of confidence and resilience that a junior lawyer usually wishes to project.

Complainants that do come forward tell human rights tribunals how difficult it was to address the harasser directly or to file an internal complaint — that the imbalance of power in the work environment made it hard for them to step forward.

Consequently, the law has quickly evolved to address such cases. Where there is an imbalance of power between the complainant and the respondent, express objection to or rejection of conduct is often not required. The standard applied to powerful harassers is not whether they knew their conduct was unwelcome but whether or not they should have known better.